How the next president and the Supreme Court are intertwined

There are few things a president can do that a successor cannot reverse.

One president’s war is often followed by the next president’s withdrawal. One president’s new social program frequently gives way to a new president’s budget cuts.

The one exception is the appointment of Supreme Court justices, who have life tenure. Each president leaves a permanent mark on the law and public policy.

This should be, and will be, a major topic of discussion in the current election. Voters should pay attention.

When the country is deeply divided on controversial policy issues, as it is today, the Supreme Court becomes the place where stalemated issues get resolved.

The justices will play a central role in defining healthcare, marriage, privacy, affirmative action and other contested policy issues of our time.

The current Supreme Court is populated with aging justices, four of whom are older than 75 and five of whom have served on the court for more than 20 years each.

The oldest justices include two conservatives, Antonin Scalia (79) and Anthony Kennedy (79), and two liberals, Ruth Bader Ginsburg (82) and Stephen Breyer (77).

There is a good chance that at least one conservative and one liberal will retire, giving the new president the opportunity to rebalance the court by appointing two justices of the same political persuasion.

Becoming a Supreme Court justice involves appealing to a president’s policy positions and then separating from them when questioned by senators from the other party. Public claims to objectivity and private biases go hand-in-hand.

But for all the scrutiny, the process remains unpredictable. Many justices — even those with extensive judicial experience — change their views when they join the Supreme Court.

They have reached the zenith of their careers, they are expected to act as philosopher-kings, and they have life tenure. These conditions encourage self-reflection and independence as never before in a judge’s career.

Many past presidents were frustrated when the justices they appointed had a change of heart.

President Dwight Eisenhower, for example, appointed former California governor Earl Warren as chief justice of the Supreme Court in 1953.

Eisenhower expected that Warren, a fellow Republican, would use the court’s rulings to restrain the federal government, reduce regulations and broaden the free enterprise system.

Warren shifted radically, becoming a proponent of active government, regulation of public behavior and an expansive social welfare state, including major civil rights milestones.

Eisenhower famously lamented that appointing Warren to the Supreme Court was his “greatest mistake.”

Eisenhower’s successors would make similar statements about their appointees. Most recently, Chief Justice John Roberts, appointed by President George W. Bush, infuriated fellow Republicans with his support for the legality of the Affordable Care Act.

Voters should look for presidential candidates who will appoint Supreme Court justices committed to their core values of fairness and integrity.

We cannot predict exactly what the new justices will do, but we can expect appointees to reflect the biases of their initial presidential patrons.

The stakes for the Supreme Court in this presidential election are especially high, and partisan.

This story was originally published February 4, 2016 at 5:37 PM with the headline "How the next president and the Supreme Court are intertwined."